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Wednesday, June 26, 2013

Marriage Equality Moves Forward

This morning, even as I was bemoaning the Voting Rights Act decision of the day before, the Supreme Court issued two 5-4 rulings that will advance Marriage Equality in the United States. First of all, the Justices declared the Defense of Marriage Act (DOMA) to be unconstitutional. Thus, at the bare minimum, as implemented by the Federal Government, Same-gender couples who were married in states that allow same-gender marriage should get all the benefits allowed to hetero-sexual couples. Just in terms of tax benefits this is huge. More about this in a moment.

The second ruling is interesting. The Court in another 5-4 ruling, but with an odd mixture of votes, decided that the plaintiffs in the Prop 8 case didn't have standing. Since the State of California chose not to defend the law, which was struck down by a lower court, SCOTUS ruled that private citizens can't take up the case. Thus, it would seem that the lower court ruling stands, and thus same-gender marriages can resume in California. By taking this route the Court didn't have to rule on the merits of the case. Had it taken up the case and decided that the state ban on gay marriage was unconstitutional, it could have impacted the remaining thirty-seven states that have bans.

So, where does this leave us? That's a good question. There are legal answers, especially at the state level that need to be figured out, and I'll need to leave the answers to those who are trained in the law to interpret. The key point that I want to lift up is one of the call to justice and equal protections under the law.

Some are going to raise objections on the basis of religious freedom, but here's the point that needs to be made no religious institution is required to perform any marriage they don't desire to perform. Now, if I work, for the local county clerk my religious freedom doesn't extend to deciding who I'm going to providing a marriage licence. No religious institution will have to ordain gay clergy. So, let's leave aside that debate.

I want to ask the question of equal protection under the law. DOMA was struck down on the basis of its conflict with the Fifth Amendment, which states that life, liberty, or property can be deprived without due process. With Justice Anthony Kennedy writing for the majority, the Court decided in the United States v. Windsor, that DOMA stands in conflict with this Constitutional right. What is interesting is the interpretation of the decision, especially the final paragraphs, which I'd like to share here:

What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.

The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. See Bolling, 347 U. S., at 499–500; Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 217–218 (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others,the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

The judgment of the Court of Appeals for the Second Circuit is affirmed.

It is so ordered

To read the full ruling, you can look below. But, note these paragraphs, especially the sentences in bold. The message of DOMA is quite simple -- it suggests that from the perspective of the Federal Government that the marriages of same-sex couples is "less worthy than the marriages of others." That is, these are second class marriages. They go on to state that the only purpose of DOMA is to disparage and injure persons in these marriages enacted in about thirteen states (and counting). Thus, this Federal Statute is in violation of the 5th Amendment, and therefore invalid.

The ruling in Prop 8 essentially allows a lower court ruling overturning that proposition to stand, making gay marriage legal once again in the nation's largest state (by population). Now, about a quarter of the population of the United States lives in states where gay marriage is legal.

The rest of us need to start to figure out what this means. That includes the church. If declared legal, will the churches step forward or stand back? Some will do one, others the second. I know where I stand -- and welcome the opportunity to do some re-wording of the marriage ceremony.

1 comment:

John McCauslin
said...

Now that secular authorities have taken this inexorable step towards granting full and complete legal dignity and respect to these loving marriages between covenantally committed individuals we need to recommit ourselves to rallying our Christian brothers and sisters into undertaking the process of catching up; not because we need to keep pace with secular culture, but because, at least in this regard and in spite of long odds, secular culture has come closer to the authentic teachings of Jesus than the church.

About Me

I am a Disciples of Christ pastor, theologian, community activist, historian, teacher. I'm a graduate of Fuller Theological Seminary with a M.Div. and a Ph.D. in Historical Theology. I'm the author of a number of books including Marriage in Interesting Times (Energion, 2016) and Freedom in Covenant (Wipf and Stock, 2015).